Douglass v. City Council

| Ala. | Nov 15, 1899

SHARPE, J.

— This, case was here on a former appeal from a decree which upon motions made by the defendants, had dissolved the injunction and -dismissed the bill. The decree was reversed, this court holding for reasons definitely stated in the opinion rendered, that, the hill was not without equity and that the injunction should have been retained. — Douglass v. City Council of Montgomery, 118 Ala. 599" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/douglass-v-city-council-6517598?utm_source=webapp" opinion_id="6517598">118 Ala. 599.

After its remandment, the original complainant having died, the cause was revived in the name of his executors and devisees who filed an amendment to the bill showing the right in which they appeared in the suit ancl charging the defendants with encroaching upon the park in controversy after the bill was filed.

The answers made to the bill as so amended, contain no denial of the main facts alleged as grounds for equitable relief, but like the answers made before the amendment, they seek to defeat the bill bcause of matters extraneous to it and which for that reason are not proper to he considered upon .the motion to dissolve the injunction in advance of the final hearing. The several motions and the exceptions to pleadings which were submitted but not decreed on in the chancery court cannot be considered on this appeal.

All questions raised by demurrers to the amended bill, as well as those involved in the motion last made to dissolve the injunction are substantially the same as those already decided by this court in this cause. We find no reason to depart from that decision and upon its authority the decree appealed from avüI be reversed and the cause remanded for further proceedings in accordance with the opinion rendered upon the former appeal.

The chancellor’s opinion appears in the transcript, - and there referring to the amendment made to the bill after the cause was remanded, he states, “I do not think however that the amendment varies the question of the equity of the bill.” That part of his opinion is correct, but nevertheless he holds the bill is without equity and accordingly it was upon the same ground dismissed a second time. While this court may overrule its own decisions, the rule is Avell settled that courts whose judgments and decrees are subject to revieAv on appeal, are in the particular case, bound by the decision of the appellate court. The rule is a necessary one and without its observance a rotation of decrees, appeals and reversals might continue endlessly Avithout forwarding the suit.